I understand the win-win philosophy and strategy for negotiations. I’m a believer in expanding the pie, and I also think it is important to look for people’s interests when negotiating or when I’m mediating. I’ve used the classic story of the little girls fighting over an orange from “Getting to Yes” many times. And while it is a good story, and it does illustrate a very important point, real world negotiations are obviously not always that easy (though I’ve mediated a few cases that really were that easy), and there are times when I believe you must negotiate for the win. This does not mean you manipulate the other side, do anything unethical, or even beat them up so bad that they feel bad after the deal is done. Even when you go for the win, you must try to ensure that both sides are happy with the deal, otherwise you may be cutting off your nose to spite your face. The main point I want to make here is that you sometimes must look out for number one, and negotiate to win. If you get too caught up with win-win all the time, you might miss out.

Maybe it is my martial art background and competitiveness that instills this desire to win in me. After all, I sure never entered a judo competition with the thoughts of getting a draw, and I never entered to lose. Each and every time I stepped on the mat, my intention was to win, and I used every technique and strategy I’d learned to go for that win. I also trained to be in top physical condition and had the willpower to help secure victory more often than defeat. In real fights, where I used my fighting skills not to win trophy, but to save my hide, I sure didn’t look for a draw, I wanted to win and win as fast as I could, because the longer a fight went on, the more chances of being hurt.

In certain circumstances, I believe it is good to go for as much as you can and win during negotiations. And if you are a more skilled negotiator than the other side, so be it. That’s why you study and practice negotiation skills, just like I also study and practice martial skills. (In fact, there are many similarities in my studies of both martial arts and negotiation.)

There’s more that can be said on this, and in my courses I address various aspects of winning and also relate things to martial arts and the warrior’s edge. The main thing I want you to realize by reading this is that it is not bad to go for the win. It is not wrong to negotiate for more. Win-win does not mean roll over and give away the farm, but sometimes I think some people feel it does. So negotiate for the win, but remember that often to win, you must give a little and be sure that the other side is at least happy with the deal.

If a person knows the end is imminent, a negotiation with Death occurs that bears a striking resemblance to everyday negotiations we see in mediation practice. The Death negotiation process goes through five distinct stages, just like a mediated negotiation.

Stage One: Denial

The first stage of opposing parties confronting each other is Denial, which is also the first reaction of a person facing death. People don’t want to die and the mind simply denies it.

For plaintiffs in a dispute the denial often takes the form of unrealistic or illusionary expectations, which is a denial of the reality of their situation. A person who has been aggrieved in some fashion carries that wound or sense of grievance from the past into the present and that sense of grievance tends to take on a life of its own. It assumes such importance in the mind of the self-perceiving victim that it looms larger in her world-view than anyone else can perceive. The wound itself may be real, yet the self-perceiving victim is all to ready to forget, because of the overwhelming presence of the wound in the mind, the old adage “there are two sides to every story.”

A victim cannot be compensated unless there is someone to pay the compensation; that ‘someone’ also has something to say about what happened. The “de minimis” phenomenon comes into play; the self-perceiving victim minimizes or explains away anything that might be said on behalf of the other side while denying any part of responsibility for the incident. This stage corresponds to the reaction of a patient on being told that she has terminal cancer and has but a short time to live; the fact of impending death is too overwhelming and the patient goes into denial.

The form of denial taken by the alleged perpetrator is often a straight out denial that it ever happened. One sees this in criminal cases, where suspects attempt to construct a hierarchy of defenses – “It wasn’t me,” “I was in Las Vegas at the time,” “I might have been present but I had nothing to do with it,” “I don’t even own a gun,” “I have a gun but only for self-defense,” and so on, as that suspect is confronted with more and more incriminating evidence. In the same fashion in civil cases defendants are apt to start with a blanket denial, relying on the legal rule that a plaintiff “has the burden” of proving her case. Following the straight denial, the defendant will construct a hierarchy of defenses that can be lengthy. The primary denial of the alleged perpetrator is the exact opposite of the primary denial of the alleged victim; the defense minimizes its role and explains it away, while the plaintiff emphasizes the hurt and seeks to lay all responsibility on the defendant.

Stage Two: Anger

The second stage is Anger, and that stage is reached when some of the plaintiff’s expectations are dashed and some of the defendant’s outermost defenses are breached. At that point the plaintiff becomes angry in a generalized way, but particularly at the defendant for not stepping up to the plate and admitting responsibility, while the defendant becomes angry at being unfairly embroiled in the clutches of the legal system. That stage of anger can start at any time and it can persist throughout the proceeding, but if the matter is to progress by way of negotiation rather than conflict or trial, at some point the third stage must be reached, and the third stage is bargaining. Anger is an expression of emotion. It naturally follows Denial, which is a suppression of reality. When a part of the reality of the situation is accepted, the parties feel anger that this should have happened to them. However, unless they intend to stay angry forever, and some do in conflicts large and small, at some point the third stage must be entered, which is Bargaining.

Stage Three: Bargaining

Once the parties have put aside enough of their anger, the Bargaining stage is reached at which point the parties can be expected to talk at least with the mediator if not with each other. Having gone through denial and anger, and even if both the denial and the anger are still present, sufficient reality has seeped into the situation that the parties are willing to talk to someone in an attempt to get it resolved. In the five-point model that describes mediation in five stages, viz. convening, opening, communicating, negotiating and closure, the Bargaining stage corresponds with the Negotiation stage, following the Communication stage which may be seen to resemble a mixture of the stages of denial and anger. As mediators we all have the experience of parties spending a lot of time talking about the matter before they are willing to enter into any kind of serious negotiation or bargaining, and this can take many forms, but the commonality among all those forms is unreality which is a refusal to view the situation as a bilateral situation that can only be resolved by taking both sides into account, and that stage is similar to the stages of denial and anger.

By now, it will be obvious that an analogy is being drawn here between every day negotiation and the five stages of the final negotiation with death brilliantly described in the works of Elizabeth Kubler﷓Ross.

Stage Four: Depression

The fourth stage in the Kubler-Ross sequence is called depression, which is the state that describes the feeling of utter defeat, apathy and impasse; a feeling that the other side is being completely unreasonable and the entire negotiation a waste of time, a feeling that one wants to walk out of the room. These are the moments when the parties feel they ran smack into a brick wall, that is always accompanied by a sense of frustration or defeat or urge to end the whole thing.

These are the times when the mediator must show her mettle, because the reason the parties came to a mediator in the first place instead of working it out between themselves, is precisely at these moments. The extent to which the mediator has been able to establish trust and presence with the parties, the extent to which the parties are at this point willing to look up to the mediator and accept her authority at least for the moment, the empathy with which the mediator is prepared to accept and understand the viewpoint of the party without losing sight that the other side also has a viewpoint to express, the skill with which the mediator is able to keep the party willing to stay and work through the impasse, and the ability of the mediator to help the parties see that in spite of this apparently impenetrable barrier there is hope of a successful resolution no matter how it feels right now, is the mark of a true professional in this relatively new discipline.

Stage Five: Acceptance

It will readily be seen that a mediated negotiation may cycle through the various stages of denial, anger, bargaining and depression many times during the course of the mediation. And no doubt during the final negotiation with death that all of us must go through some time, there may also be time to cycle many times through those four stages.

The fifth and final stage in the Kubler-Ross sequence is called Acceptance, and this corresponds with what mediators know as Closure. Acceptance is an acknowledgement of the reality of what is, and closure represents an acknowledgment of the reality of all aspects of the dispute. The final negotiation with Death always results in death; although some people have had the Kubler﷓Ross negotiation in the form of a near-death experience and survived to tell the tale – even so, as human beings we all know that we are not going to be here forever.

Acceptance of the inevitability of death is described as very healing, and closure is also healing. Closure results in finality with respect to the given dispute – it also means the loss of illusions, the dashing of many hopes, the failure of expectations and of defenses, and represents the necessary coming together of the parties on some kind of middle ground. In spite of all that, the closure that ends a mediated negotiation also represents a regaining of life energy for the parties that had been up to this point tied together in destructive conflict. The conclusion of a mediation means that the parties are now free to move on with their lives. Whether or not they are happy in the moment with the result that they may have felt compelled by circumstances to accept, at least when they wake up the next morning they do not have to worry about this conflict, and conflicts take an enormous amount of energy. Conflicts are expensive in terms of financial resources, time resources, mental and psychological resources. Conflicts are not an inexpensive occupation.

It is an advantage for parties to settle their differences but it may be that they are unable to do so and are then compelled to put the matter to a third person for decision, but the vast majority of disputes in our society today are in fact resolved by negotiations between the parties, and increasingly those negotiations are facilitated with the assistance of a skilled mediator. A mediator has the function of making the interaction between the parties smoother and less abrasive. A successful mediation is both death and rebirth, as the mediator facilitates the disputants through the stages of denial, anger, bargaining and depression to acceptance. Acceptance means closure; usually it is a good feeling.

Summary:

The five stages of mediation and the five stages of the Kubler-Ross death negotiation correspondent: Convening with denial, Opening with anger, Negotiation with bargaining, Impasse with depression, and finally Closure with acceptance.

Life prepares us for death in many ways; entanglement in conflict is one such way. Kubler-Ross shows us the sequence that accompanies the knowledge of imminent death – a dying person needs help at such a time. Every negotiation is a petit mort; a chance also for growth – disputants need help at such a time. This is what mediators do.

Do you know how to win more negotiations by using misdirection? Misdirection is a ploy that negotiators use in negotiations to alter the perspective of the opposing negotiator and/or expose that individual as possessing a different outlook than the norm from others involved in the negotiation.

A negotiator named John was engaged on a project to negotiate on behalf of his clients. He noted that the opposing negotiator’s modus operandi was to go into attack mode anytime someone voiced or wrote an opinion that was contrary to hers. She constantly created problems on and for the project. In an attempt to get her removed from the project, John thought he’d use a misdirection tactic on her to show everyone how volatile she was, which meant she’d jeopardize the project if she stayed on it. To that end, John wrote an email with content that appeared to be meant only for his clients’ eyes and sent the email to the opposing negotiator; the email outlined what attempts the opposing negotiator was engaging in and why she might be engaging in such actions. As predicted by John, based on her prior actions, she responded with a scathing email laced with profanities that would have scorched someone’s hands had they read her response on paper. John displayed the email to everyone as further proof as to why she should be released from the project. The others agreed with John’s assessment and she was excused.

John had employed one of the oldest tactics in negotiation, misdirection. In order for misdirection to work effectively…

1. You must have insight into the thought process of your target per the way they think and how they might react in a particular situation. That insight will allow you to assess the probability that they will perform according to the stimuli you apply.
2. Create a backdoor through which you can reposition your offer if the stimuli doesn’t work and/or it’s identified as being manipulative (if it is, you can still frame the manipulation in a positive perspective (i.e. I was doing so to help you) if that’s the case, be sure it can be viewed as such by the opposing negotiator and anyone else that has a stake in the outcome of the negotiation).
3. Understand which personality types misdirection works best with. Some people are very astute and will handily identify such efforts, while others will never recognize the fact that anything occurred at all.

In your negotiations, if you sense misdirection is at hand, question the validity of what you believe to be real. Always consider how you might employ misdirection and be mindful of having the ploy used against you.

Misdirection can come in many forms (i.e. the need or greed factor being played on, security per what the deal will bring, playing weak to lure the other negotiator to a different state of mind, etc.) As such, you have to be alert from the moment you sense that misdirection is introduced into a negotiation. By doing so, you’ll be more aware as to what’s occurring in the negotiation, what the other negotiator is attempting to do to win the negotiation, and to what lengths he’ll go to win. You’ll be better positioned to thwart his efforts, which will bode well for the enhancement of a positive outcome for you… and everything will be right with the world.

Remember, you’re always negotiating!